A Representation Agreement (“RA”), previously referred to as a living will, is a legal document that allows you to appoint another person, who is called your representative, to make decisions principally regarding your health care in the event that you are incapable of making such decisions on your own.
The purpose of the Representation Agreement with broader powers is to enable adults to
make legally enforceable arrangements for the most comprehensive coverage of health care and personal care matters. It is for people who are mentally capable now and want to plan for the future in case they become incapable.
Benefits of a Representation Agreement
- It ensures that your important wishes and decisions are taken into consideration and adhered to in case of a medical emergency situation or should you become incapable of making decisions on your own behalf.
- It will give the legal power to your representative to make personal care decisions for you at a time when you may be vulnerable to being taken advantage of by less than scrupulous family members, friends, caregivers or acquaintances.
- A Representation Agreement can save you money in the long run for if you don’t have a Representation Agreement in place, a family member or friend would have to make a costly court application to be appointed a Committee to look after your affairs should you be incapable of doing so.
- It can reduce the burden on family members as to what health care decision to make on your behalf.
- It can avoid having the government involved in your private and personal affairs.
Types of Representation Agreements
Under the BC Representation Agreement Act (the “Act”), there are generally two different types of representation agreements that you can make:
1. An agreement with only “limited powers”
Sometimes called a Section 7 Representation Agreement (RA7)
Section 7 of the Act allows you to make a basic representation agreement that covers your routine daily living requirements. In a section 7 agreement you can authorize your representative(s) to help you make decisions, or to make decisions on your behalf, about any or all of the following:
- your personal care;
- the routine management of your financial affairs, including paying your bills, receiving and depositing your pension and other income, purchasing your food, accommodation and other services necessary for your personal care, and making investments for you;
- minor health care, including routine tests and dental treatment;
- major health care, including major surgery, major diagnostic or investigative procedures, treatments involving a general anesthetic and radiation and other forms of therapy, but not including decisions to refuse life-supporting care or treatment and certain other significant health care decisions (such “bigger” health care decisions need to be authorized under a section 9 agreement); and
- obtaining legal services for you and instructing lawyers with respect to legal proceedings (except for the commencement of divorce proceedings or creating a will, which cannot be authorized).
Representatives under Section 7 Representation Agreements cannot:
- make, or help you make, decisions to refuse health care necessary to preserve life
- physically restrain, move or manage you (or allow someone else to so so)
- make decisions about where you should go if you need to move into care
2. An agreement which includes “general powers”
Sometimes called a Section 9 Representation Agreement (RA9)
Section 9 of the Act allows you to make a representation agreement that gives your representative the authority to make significant medical and other decisions for you, including the decision to refuse life-supporting treatment. Things you can authorize your representative to do on your behalf in a section 9 agreement include the ability to:
- physically restrain or move you when necessary, despite your objections at the relevant time;
- give consent to specified kinds of health care, in the circumstances outlined in your agreement, even if you are refusing to give your consent at the applicable time;
- refuse consent to life-supporting care or treatment and refuse or give consent to other specified kinds of health care;
- admit you to a nursing home or any other kind of care facility;
- make arrangements for the temporary care, education and financial support of your minor children and any other persons who are cared for or supported by you;
- make arrangements for the care or education of your children, pets, or others you support or care for;
- may interfere with your religious affairs;
- decide if you should work or retire;
- decide what kinds of educational, social, vocational or other activities you should participate in; and
- daily decisions on what you should eat, or wear.
When should I Make a Representation Agreement (RA9)?
You will be presumed capable of making the decision to enter into a representation agreement unless it has been proven otherwise. This means you must be able to understand and appreciate the context of the agreement and any consequences that may arise from it.
The law gives you the benefit of the doubt when it comes to deciding whether or not you are legally capable of making a representation agreement. Under the law you are presumed to be capable of making a representation agreement – and presumed to be capable of handling your own affairs – until the contrary is demonstrated.
Who should i Name as a Representative?
You can choose any capable individual to act as your representative, so long as he or she is 19 years of age or older and willing to act as your representative.
It is very important that you give careful consideration about who you wish to choose to act as your representative. Think about what you want your representative to do for you, and who is best able to do those things. Choose someone you trust, and who understands the values and beliefs that guide your decision making. If the person will be handling financial matters for you, choose someone who is good at handling money.
If you have no relatives or friends who are willing and able to serve as your representative, you could approach a credit union or trust company, or the Public Guardian and Trustee of BC, about acting as your representative. In each case, if the entity agrees to act as your representative, you will be charged fees for their services. If you appoint a credit union or trust company to be your representative, their authority must be restricted to financial and legal matters only (i.e., you cannot authorize a credit union or trust company to make health or personal care decisions for you).
Can I appoint more than one Representative?
You can choose more than one representative in your representation agreement, if you wish. If you do this, you can assign to each person different areas of authority (for example, one handling financial matters and the other your personal and health care), or the same areas of authority.
If you appoint more than one person in the same area of decision-making responsibility, the law states that they must act unanimously, unless you give them permission in your representation agreement to act independently.
There are good reasons to permit representatives to act independently. For example, if one representative is temporarily unavailable due to vacation or illness, the other can take over on his or her own, and decisions can continue to be made on your behalf. On the other hand, requiring your representatives to make decisions together will ensure that there is always a “double check” on decisions made on your behalf.
Does the representation agreement cover financial affairs?
A Representation Agreement (RA7) covers routine management of financial affairs, such as paying bills, applying for benefits or managing investments. An Enduring Power of Attorney provides the most comprehensive coverage for financial and legal affairs. It includes what is covered by the Representation Agreement under routine management of financial affairs and additional authorities such as dealing with real estate and looking after the financial needs of minor children or other dependants.
Many people will make an Enduring Power of Attorney to cover their financial affairs and make a Representation Agreement to cover health care and personal care matters.
what is a Monitor?
A monitor is an individual who you may appoint to oversee the activities of your representative(s) and ensure that they comply with the terms of your representation agreement. The Representative Agreement Act permits you to name a monitor. Appointing a person to act as monitor of your representative(s) may be complicated/unusual. You may wish to discuss this with your lawyer.
When does a Representative Agreement come into Effect?
Unless you state otherwise in your agreement, your representative agreement will come into effect as soon as it is signed and witnessed.
However, it does not have to be used right away if you do not need help yet. You may wish to have a trusted third party hold the document with instructions that they are to release it to your representative only when it is needed.
If you do not want your representation agreement to come into effect right away, you must specify in your agreement the “triggering event” that will cause the agreement to come into effect, and how the event is to be confirmed and by whom. You could, for example, provide that your agreement is to come into effect when your family physician is of the opinion – or when certain trusted friends jointly agree – that you are no longer able to make decisions.
Can I Change or revoke my representation agreement?
Yes, as long as you are mentally capable, you can change or revoke your agreement at any time, but you must give written notice of the revocation to your representative(s), each alternate representative and your monitor, if applicable.
You should review your representation agreement at least once a year to ensure that it still reflects your wishes and addresses all the decisions that may need to be made on your behalf, and that the representatives named are still willing and able to act as your representative if and when needed.
We are here to help
A representation agreement is a vital estate planning tool that should be created correctly with specific legal requirements with respect to the signing and witnessing of representation agreements, and also with respect to required certificates which must be signed by your representative(s), witnesses and others.
If your representation agreement is not properly signed and witnessed or the necessary certificates completed (in the case of a RA9), it may not be valid. Contact Open Door Law to assist you in drafting and witnessing the right type of Representation Agreement for you.
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